Ohio Supreme Court to hear arguments over state certificate to allow Icebreaker wind project on Lake Erie
COLUMBUS, Ohio – Two Bratenahl residents are scheduled to argue before the Ohio Supreme Court next week that a state board should not have granted a certificate that will allow construction of the Icebreaker wind project on Lake Erie.
On Dec. 7, the Ohio Supreme Court will hear an appeal from W. Susan Dempsey and Robert M. Maloney against the Ohio Power Siting Board, the panel that reviews wind generation proposals and, when it deems appropriate under state law, provides certificates of environmental compatibility and public need, which are necessary for construction to begin. Icebreaker, if built, would be the first freshwater wind project in North America. It’s proposed as a demonstration project of six wind turbines, generating 20.7 megawatts of electricity.
The history of the conflict between Dempsey and Maloney and the Icebreaker project goes back to May 23, 2018, when the Ohio Power Siting Board granted the Bratenahl residents permission to intervene in Icebreaker’s application for the certificate.
Also at the time, the Siting Board granted others permission to intervene, such as the Sierra Club, the Ohio Environmental Council and the Indiana/Kentucky/Ohio Regional Council of Carpenters. The other groups entered into a stipulation, or agreement, with Icebreaker that resolved environmental and construction concerns on Sept. 4, 2018. However, Dempsey and Maloney were not part of the stipulation and continued to oppose the project.
The case is likely the last legal hurdle for Icebreaker, after years of hearings and appeals with the Siting Board—including a requirement, since removed, that the operation of the turbine blades be curtailed from dusk to dawn between March 1 to Nov. 1 each year following construction to mitigate the killing of migrating birds and bats. Icebreaker officials celebrated that win, saying the requirement was a poison pill that would make the demonstration project financially unviable.
Siting Board made many decisions under former Chair Sam Randazzo, who opposed renewable energy in his earlier career as an energy lobbyist, and ultimately had to resign from the Siting Board and Public Utilities Commission of Ohio after the FBI searched his Columbus home during its investigation into the alleged $60 million corruption scandal involving FirstEnergy and former Ohio House Speaker Larry Householder.
Nevertheless, even if Icebreaker is successful in Ohio’s high court, it lacks tens of millions of dollars necessary for the estimated $173 million needed to finance and construct the turbines. It needs to line up more customers to buy the power.
Dempsey and Maloney are both condo owners in Bratenahl. Although the Icebreaker proposal is currently a demonstration project for just six wind turbines generating only 20.7 megawatts of electricity, they said they are concerned that it could be expanded to over 1,000 turbines.
Dempsey, a lifelong Cuyahoga County resident who said she learned to swim in Lake Erie before she could walk, watches balcony geese, ducks, eagles, great blue herons and seagulls from her ninth-story. She’s concerned about the killing of birds and bats by the turbines, she told the Ohio Power Siting Board in 2018.
Maloney regularly rides his boat, swims and fishes in Lake Erie. He also enjoys birding at Lake Erie Nature Preserve. In a 2018 deposition, he said he owns a company that buys and sells petroleum products.
Dempsey and Maloney maintain that Icebreaker never provided enough information to the Siting Board about its probable environmental impact.
“The State of Ohio owns its interest in Lake Erie in trust for the benefit of the citizens of Ohio—the ‘public benefit’—to enjoy… (for) navigation, commerce, and fishing in and on the lake’s waters free from the obstruction or interference of interests ceded to private parties; and free from the award of a private, for-profit, interest in the Lake to Icebreaker that is not granted equally to the citizens of the State,” they state.
Dempsey and Maloney take issue with the Siting Board granting the certificate despite Icebreaker not providing data on the impact on birds and bats. The Ohio Department of Natural Resources and the U.S. Fish and Wildlife Service has requested the information since 2008, their appeal states.
Without the data, the Siting Board couldn’t have evaluated the project’s environmental impact, which is required by law, they say.
Dempsey and Maloney contend that the Siting Board unlawfully removed the requirement that blades not operate at the night during migration season. They state the Ohio Department of Natural Resources’ wind energy administrator wanted the blades off at night until Icebreaker could create an avian and bat collision monitoring plan and could demonstrate the impacts could be significantly avoided.
Funding the suit
The Ohio Environmental Council, which has championed the Icebreaker project since entering the stipulation agreement with Icebreaker in 2018, says in a friend-of-court brief that Icebreaker is in the public interest because it puts the state on a path toward a clean energy future, which would curb climate change.
The Ohio Environmental Council’s brief also notes that in 2018, a deposition revealed that Murray Energy Corp., a now-bankrupt coal producer, was paying for expert testimony and Dempsey and Maloney’s legal fees in their case.
“As the OEC continues to push for a cleaner future, we are often met with resistance from the fossil fuel industry, an industry that is threatened by the need to shift our energy sources from carbon-intensive fossil fuel generation toward emissions-free generation options like wind and solar,” it states.
Ohio Power Siting Board’s positon
The Siting Board argues in a brief filed before the Ohio Supreme Court that it followed the law. It says that the project’s small scale was a factor when it was evaluating its environmental impact. Icebreaker planners carefully selected the site to avoid areas with greater fish habitat and birding areas. The project was moved farther off shore than originally planned, which was just three to five miles, instead of the current eight to 10 miles, it states in a brief.
The Siting Board points to testimony from other experts who said, “the Icebreaker project would have the ‘lowest impact on birds and bats’ when compared to more than 100 other projects they had analyzed,” the brief states.
The Siting Board says it made over 30 conditions that Icebreaker must follow, including monitoring wildlife activity before and after construction from April 1 through Nov. 15 each year. Before construction, the radar must be installed on a barge.
“This expansive period covers both the spring and fall migration periods, as well as the summer residency period,” its brief states. “The radar surveys are required to be conducted for one spring/summer/fall season preconstruction. Then, Icebreaker is required to conduct two spring/summer/fall seasons post construction.”
It states the preconstruction period will establish a baseline for the number, density and behavior for birds and bats, which can be compared to the postconstruction surveys to determine actual impacts once the turbines are in place.
The Siting Board also is requiring collision mitigation technology be installed and fully functioning before turbine operations begin. The technology will be audited by the Ohio Department of Natural Resources or a consultant.
Icebreaker, in a brief in the case, notes that the review and evaluation took years. More than 5,000 pages of evidence was considered.
“Appellants might have weighed the evidence differently,” Icebreaker says about Dempsey and Maloney, “but mere factual disagreement is not sufficient for this Court to overturn the Board’s expert judgment. Therefore, the Court should uphold the Board’s decision on appeal.”
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